The Health Secretary, Sajid Javid, announced on 9 November 2021, that front line NHS England staff (Scotland, Wales and Northern Ireland will make their own decisions) will need to be fully vaccinated against COVID-19 by April 2022, unless medically exempt. This significant decision has been widely speculated about in the press, following ongoing consultation relating to the social care sector and the NHS which began in September 2021.
The announcement of this decision is closely aligned with the deadline of Thursday 11 November 2021 for care workers in England to get vaccinated, unless medically exempt.
Whilst there is currently no published guidance and this remains subject to parliamentary approval, it is understood that staff will be given until 1 April 2022 to obtain both doses. It is currently reported that more than 89% of NHS England frontline staff are fully vaccinated and that, the decision, will impact on approximately 80,000- 100,000 members of staff. The Government has not suggested that the flu vaccine will be mandatory.
From an employment law perspective, the implications of this decision are wide ranging. An immediate concern for the NHS is whether this decision could lead to a loss of critical NHS staff over the rapidly approaching winter months. Winter is typically a demanding and challenging time for the NHS, a situation which may be heightened by a staffing crisis.
However, unlike with compulsory vaccinations in care homes, Sajid has referred to exemptions for those who do not have face-to-face contact with patients in their work. This is differentiated from the more stringent rules applying in care homes, where all staff (with limited exceptions) are required to be vaccinated from 11 November 2021. This difference appears to be as a result of the higher proportion of staff members in care homes that are required to work in close proximity to vulnerable residents. Based on the initial statement from Sajid, it appears that NHS staff that are engaged as cleaners or within catering facilities (i.e. no face to face contact with patients) will not be included within the requirement to be vaccinated.
More broadly, a decision to dismiss an NHS frontline employee for failure to receive the vaccine could lead to various employment law implications, including potential claims for unfair dismissal if consultations are not conducted fairly, alongside potential discrimination claims. Employers will therefore need to carefully consider whether anyone that refuses to be vaccinated could be moved into a “non- front-line role” (e.g. an administrative, office-based role) before reaching any decisions to dismiss.
Further guidance is awaited which should assist employers in understanding the new changes. We will update you further as and when more information regarding compulsory vaccination is released by the Government. In the meantime if you have any employment issues you would like to discuss please contact a member of the Employment team.